American History Told by Contemporaries/Volume 2/Chapter 7
PART III
COLONIAL GOVERNMENT
CHAPTER VII — PRINCIPLES OF ENGLISH CONTROL
45. Extracts from a Navigation Act (1695/6)
BY THE PARLIAMENT OF ENGLAND
This is one of a series of statutes regulating colonial trade. See below, Nos. 87, 146. — Bibliography: Winsor, Narrative and Critical History, VI, 62-65; Channing and Hart, Guide, §§ 133, 147; Contemporaries, I, 185, 240, 462.
AN ACT for preventing Frauds and regulating Abuses in the Plantation Trade.
[I.] . . . That after the Five and twentieth Day of March One thousand six hundred ninety eight noe Goods or Merchandizes whatsoever shall bee imported into or exported out of any Colony or Plantation to His Majesty in Asia Africa or America belonging or in his Possession or which may hereafter belong unto or bee in the Possession of His Majesty His Heires or Successors or shall bee laden in or carried from any One Port or Place in the said Colonies or Plantations to any other Port or Place in the same, the Kingdome of England Dominion of Wales or Towne of Berwick upon Tweed in any Shipp or Bottome but what is or shall bee of the Built of England or of the Built of Ireland or the said Colonies or Plantations and wholly owned by the People thereof or any of them and navigated with the Masters and Three Fourths of the Mariners of the said Places onely (except such Shipps onely as are or shall bee taken Prize and Condemnation thereof made in one of the Courts of Admiralty in England Ireland or the said Colonies or Plantations [to bee navigated by the Master and Three Fourths of the Mariners English or of the said Plantations as aforesaid and whereof the Property doth belong to English Men] And alsoe except for the space of Three Yeares such Foreigne built Shipps as shall bee employed by the Commissioners of His Majesties Navy for the tyme being or upon Contract with them in bringing onely Masts Timber and other Navall Stores for the Kings Service from His Majesties Colonies or Plantations to this Kingdome to bee navigated as aforesaid and whereof the Proerty doth belong to English Men) under paine of Forfeiture of Shipp and Goods one third part whereof to bee to the use of His Majesty His Heires and Successors one third part to the Governor of the said Colonies or Plantations and the other third part to the Person who shall informe and sue for the same by Bill Plaint or Information in any of His Majesties Courts of Record att Westminster or in any Court in His Majesties Plantations where such Offence shall bee committed. . . .
[VIII.] And itt is further enacted and declared by the Authority aforesaid That all Lawes By-lawes Usages or Customes att this tyme or which hereafter shall bee in practice or endeavoured or pretended to bee in force or practice in any of the said Plantations which are in any wise repugnant to the before mentioned Lawes or any of them soe far as they doe relate to the said Plantations or any of them or which are wayes repugnant to this present Act or to any other Law hereafter to bee made in this Kingdome soe farr as such Law shall relate to and mention the said Plantations are illegall null and void to all Intents and Purposes whatsoever. . . .
[XVI.] [And for a more effectuall prevention of Frauds which may bee used to elude the Intention of this Act by colouring Foreigne Shipps under English Names Bee itt further enacted by the Authority aforesaid That from and after the Five and twentieth day of March which shall bee in the Yeare of our Lord One thousand six hundred ninety eight noe Shipp or Vessell whatsoever shall bee deemed or passe as a Shipp of the Built of England Ireland Wales Berwick Guernsey Jersey or of any of His Majesties Plantations in America soe as to bee qualifyed to trade to from or in any of the said Plantations untill the Person or Persons claymeing Property in such Shipp or Vessell shall register the same as followeth (that is to say) If the Shipp att the tyme of such Register doth belong to any Port in England Ireland Wales or to the Towne of Berwick upon Tweed then Proofe shall bee made upon Oath of One or more of the Owners of such Shipp or Vessell before the Collector and Comptroller of His Majesties Customes in such Port or if att the tyme of such Register the Shipp belong to any of His Majesties Plantations in America or to the Islands of Guernsey or Jersey then the like Proofe to bee made before the Governour together with the Principall Officer of His Majesties Revenue resideing on such Plantation or Island which Oath the said Governours and Officers of the Customes respectively are hereby authorized to administer in the Tenour following (vizt). . . .]
The Statutes of the Realm (London, 1820), VII, 103-107 passim.
46. Creation of the Board of Trade (1696)
This is a reorganization of the board created in 1660 (Contemporaries, I, No. 54), and again changed in 1752. The extract brings out the theory that the details of colonial administration belonged to the crown and not to Parliament. —Bibliography as in No. 45 above.
HIS Majesties Commission for promoting the Trade of this Kingdom and for inspecting and improving His Plantations in America and elsewhere.
William the Third by the Grace of God King of England, Scotland, France and Ireland, Defender of the Faith &a. To our Keeper of oure Great Scale of England or Chancellor of England for the time being, Our President of Our Privy Council for the time being, Our first Commissioner of Our Treasury And our Treasurer of England for the time being, Our first Commissioner of our Admiralty and Our Admirall of England for the time being, And our principall Secretarys of State for the time being, And the Chancellor of Our Exchequer for the time being, To Our Right Trusty and Right Well beloved Cousin and Councillor John Earl of Bridgewater, and Ford Earl of Tankerville, To our Trusty and Well beloved Sir Philip Meadows, Knt , William Blaithwayte, John Pollexfen, John Locke, Abraham Hill, and John Methwen, Esquires, Greeting. . . .
Kno wyee therefor that We reposing espetiall Trust and Confidence in your Discretions, Abilityes and Integrities . . . authorize and appoint . . . you, to be Our Commissioners during our Royal Pleasure, for promoting the Trade of our Kingdome, and for Inspecting and Improving our Plantations in America and elsewhere. . . . And We do hereby further Impower and require you Our said Commissioners to take into your care all Records, Grants and Papers remain ing in the Plantation Office or thereunto belonging.
And likewise to inform yourselves of the present condition of Our respective Plantations, as well with regard to the Administration of the Government and Justice in those places, as in relation to the Commerce thereof; And also to inquire into the Limits of Soyle and Product of Our severall Plantations and how the same may be improved, and of the best means for easing and securing Our Colonies there, and how the same may be rendred most usefull and beneficiall to our said Kingdom of England.
And We do hereby further impower and require you Our said Commissioners, more particularly and in a principal manner to inform yourselves what Navall Stores may be furnished from Our Plantations, and in what Quantities, and by what methods Our Royall purpose of having our Kingdom supplied with Navall Stores from thence may be made practicable and promoted ; And also to inquire into and inform yourselves of the best and most proper methods of settling and improving in Our Plantations, such other Staples and other Mau[n]ufactures as Our subjects of England are now obliged to fetch and supply themselves withall from other Princes and States ; And also what Staples and Manufactures may be best encouraged there, and what Trades are taken up and exercised there, which are or may prove prejudiciall to England, by furnishing themselves or other Our Colonies with what has been usually supplied from England ; And to finde out proper means of diverting them from such Trades, and whatsoever else may turne to the hurt of Our Kingdom of England.
And to examin and looke into the usuall Instructions given to the Governors of Our Plantations, and to see if any thing may be added, omitted or changed therein to advantage; To take an Account yearly by way Of Journall of the Administration of Our Governors there, and to draw out what is proper to be observed and represented unto Us ; And as often as occasion shall require to consider of proper persons to be Governors or Deputy Governors, or to be of Our Councill or of Our Councill at Law, or Secretarys, in Our respective Plantations, in order to present their Names to Us in Councill.
And We do hereby further Authorize and impower you Our said Commissioners, to examin into and weigh such Acts of the Assemblies of the Plantations respectively as shall from time to time be sent or transmitted hither for Our Approbation ; And to set down and represent as aforesaid the Usefulness or Mischeif thereof to Our Crown, and to Our said Kingdom of England, or to the Plantations themselves, in case the same should be established for Lawes there ; And also to consider what matters may be recommended as fitt to be passed in the Assemblys there, To heare complaints of Oppressions and maleadministrations, in Our Plantations, in order to represent as aforesaid what you in your Discretions shall thinke proper ; And also to require an Account of all Monies given for Publick uses by the Assemblies in Our Plantations, and how the same are and have been expended or laid out.
E. B. O'Callaghan, editor, Documents relative to the Colonial History of the State of New-York (Albany, 1854), IV, 145-148 passim.
47. "Englishmen Hate an Arbitrary Power" (1710)
Wise was one of the foremost prose writers of the colonial period, and minister at Ipswich. —Bibliography: Tyler, American Literature, II, 104-116; Palfrey, New England, III, 525-527; Winsor, Narrative and Critical History, VI, ch. I; J. A. Doyle, English in America, Puritan Colonies, II, 378; Channing and Hart, Guide, § 130.
ENGLISHMEN hate an arbitrary power (politically considered) as they hate the devil.
For that they have through immemorial ages been the owners of very fair infranchizements and liberties, that the sense, favor or high esteem of them are (as it were) extraduce, transmitted with the elemental materials of their essence from generation to generation, and so ingenate and mixed with their frame, that no artifice, craft or force used can root it out. Naturam expellas furca licet usque recurrit. And though many of their incautelous princes have endeavored to null all their charter rights and immunities, and agrandize themselves in the servile state of the subjects, by setting up their own seperate will, for the great standard of government over the nations, yet they have all along paid dear for their attempts, both in the ruin of the nation, and in interrupting the increase of their own grandeur, and their foreign settlements and conquests. Had the late reigns, before the accession of the great William and Mary, to the throne of England, but taken the measures of them, and her present majesty, in depressing vice, and advancing the union and wealth, and encouraging the prowice and bravery of the nation, they might by this time have been capable to have given laws to any monarch on earth ; but spending their time in the pursuit of an absolute monarchy (contrary to the temper of the nation, and the ancient constitution of the government) through all the meanders of state craft, It has apparently kept back the glory, and dampt all the most noble affairs of the nation. And when under the midwifry of Machiavilan art, and cunning of a daring prince, this MONSTER, tyranny, and arbitrary government, was at last just born, upon the holding up of a finger ! or upon the least signal given, ON the whole nation goes upon this HYDRA.
The very name of an arbitrary government is ready to put an English man s blood into a fermentation ; but when it really comes, and shakes its whip over their ears, and tells them it is their master, it makes them stark mad ; and being of a memical genius, and inclined to follow the court mode, they turn arbitrary too.
That some writers, who have observed the governments and humors of nations, thus distinguish the English :
The emperor (say they) is the king of kings, the king of Spain is the king of men, the king of France the king of asses, and the king of England the king of devils ; for that the English nation can never be bridled, and rid by an arbitrary prince. Neither can any chains put on by dispotic and arbitrary measures hold these legions. . . . to conclude this plea, I find not amongst all the catalogues of heroes or worthy things in the English empire, peers to these undertakers ; therefore we must needs range them with the arbitrary princes of the earth, (such as the great Czar or Ottoman monarch) who have no other rule to govern by, but their own will. . . .
John Wise, The Churches Quarrel Espoused (Boston, 1772),. No. ii, 147-148.
48. "Defence of the New-England Charters" (1721)
BY AGENT JEREMIAH DUMMER
Dummer was a minister in New England, but later entered into English politics. He was agent of Massachusetts in England from 1710 to 1721. This is the most famous statement of the rights of the colonies in this period. — Bibliography: Tyler, American Literature, II, 116-120; Palfrey, New England, IV, 277-580 passim; J. A. Doyle, English in America, Puritan Colonies, II, 371-372; Channing and Hart, Guide, § 130. — For previous discussions of charters, see Contemporaries, I, Nos. 67, 105 109, 114, 116, 135.
The 2d Charge in the Bill against the Charter Governments, that they have exercis'd arbitrary Power, answer'd. THE other Charge in the Bill is, That they have exercis'd arbitrary Power. If this be aim'd at the Proprietary Governments, which however I don't accuse, I have nothing to say, but am sure that the Charter Governments stand clear of it. The Thing speaks loudly for itself. For in the Governments, where there are Charters, and those Charters entire, Officers Civil and Military are elected by the People, and that annually ; than which Constitution nothing under Heaven can be a stronger Barrier against arbitrary Rule. For should it be allow'd, that the People, corrupted or deceiv'd, might instead of wise Magistrates chuse Tyrants and Oppressors to Lord over them one Year ; yet it can't be imagin'd, that after they have felt the Smart of it, they will do so the next. Nor can there be a greater Obligation on the Rulers themselves to administer Justice, than that their Election depends on it the next Year. Hence the frequent Choice of Magistrates has bin ever a main Pillar, upon which all who have aim'd at Freedom in their Schemes of Government, have depended.
AS the Reason is incontestable, so the Fact is apparent, that these Governments, far from retrenching the Liberty of the Subject, have improv'd it in some important Articles, which the Circumstances of Things in Great Britain perhaps don't require, or won't easily admit.
To instance in a few; There has bin from the beginning an Office erected by Law in every County, where all Conveyances of Land are enter'd at large, after the Grantors have first acknowledg'd them before a Justice of Peace ; by which means much Fraud is prevented, no Person being able to sell his Estate twice, or take up more Money upon it than it's worth. Provision has likewise bin made for the Security of the Life and Property of the Subject in the Matter of Juries, who are not return'd by the Sherriff of the County, but are chosen by the Inhabitants of the Town a convenient Time before the sitting of the Courts. And this Election is under the most exact Regulation, in Order to prevent Corruption, so far as Humane Prudence can do it. It mast be noted, that Sherriffs in the Plantations are comparatively but little Officers, and therefore not to be trusted as here, where they are Men of ample Fortunes. And yet even here such flagrant Corruptions have bin found in returning Juries by Sherriffs, that the House of Commons thought it necessary in their last Session to amend the Law in this Point, and pass d a Bill for choosing them by Ballot.
Redress in their Courts of Law is easy, quick, and cheap. All Processes are in English, and no special Pleadings or Demurrers are ad mitted, but the general Issue is always given, and special Matters brought in Evidence ; which saves Time and Expence ; and in this Case a Man is not liable to lose his Estate for a Defect in Form, nor is the Merit of the Cause made to depend on the Niceties of Clerkship. By a Law of the Country no Writ may be abated for a circumstantial Error, such as a slight Mis-nomer or any Informality. And by another Law, it is enacted, that every Attorney taking out a Writ from the Clerk's Office, shall indorse his Sirname upon it, and be liable to pay to the adverse Party his Costs and Charges in Case of Non- Prosecution or Discontinuance, or that the Plaintiff be Non-suit, or Judgment pass against him. And it is provided in the same Act, That if the Plaintiff shall suffer a Nonsuit by the Attorney's mis-laying the Action, he shall be oblig'd to draw a new Writ without a Fee, in case the Party shall see fit to revive the Suit. I can't but think that every Body, except Gentle men of the long Robe and the Attornies, will think this a wholesome Law, and well calculated for the Benefit of the Subject. For the quicker Dispatch of Causes, Declarations are made Parts of the Writ, in which the Case is fully and particularly set forth. If it be matter of Account, the Account is annex d to the Writ, and Copies of both left with the Defendant ; which being done Fourteen Days before the Sitting of the Court, he is oblig d to plead directly, and the Issue is then try'd. Whereas by the Practice of the Court of' King's Bench, Three or Four Months Time is often lost after the Writ is serv'd, before the Cause can be brought to Issue.
Nor are the People of New-England oppress'd with the infinite Delays and Expence that attend the Proceedings in Chancery, where both Parties are often ruin d by the Charge and Length of the Suit. But as in all other Countries, England only excepted, Jus & Ǣquum are held the same, and never divided ; so it is there : A Power of Chancery being vested in the Judges of the Courts of Common Law as to some particular Cases, and they make equitable Constructions in Others. I must add, that the Fees of Officers of all sorts are setled by Acts of Assembly at moderate Prices, for the Ease of the Subject.
IT were easy to mention other Articles, but that I persuade my self it is needless. The Charter Governments are celebrated for their excellent Laws and mild Administration; for the Security of Liberty and Property ; for the Encouragement of Vertue, and Suppression of Vice ; for the promoting Letters, by erecting Free-Schools and Colleges ; and in one Word, for every Thing that can make a People happy and prosperous. To these Arts it is owing, that New-England, though she has attain'd but little more than the Age of a Man, with all the Disadvantages under which she labours in respect to her Trade and Climate, and almost a perpetual Indian War, has hitherto flourish d far above any other of the Plantations.
This being the Case of the Charter Governments, let us turn the Tables, and see how it far'd with them when in an evil Reign they lost their Charters. Then the Governour of New-England with Four or Five Strangers of his Council, Men of desperate Fortunes, and bad if any Principles, made what Laws, and levy'd what Taxes they pleas'd on the People. They, without an Assembly, rais'd a Penny in the Pound on all the Estates in the Country, and another Penny on all imported Goods, besides Twenty Pence per Head as Poll Money, and an immoderate Excise on Wine, Rum, and other Liquors. Several worthy Persons, having in an humble Address represented this Proceeding as a Grievance, were committed to the common Jail for a High Misdemanour ; deny'd the Benefit of the Habeas Corpus Act ; try d out of their own County; fin'd exorbitantly, and oblig'd to pay 160l. for Fees, when the Prosecution would hardly have cost them so many Shillings in Great Britain. And to compleat the Oppression, when they upon their Tryal claim'd the Privileges of Englishmen, they were scoffingly told, Those Things would not follow them to the Ends of the Earth. Unnatural Insult ! must the brave Adventurer, who with the Hazard of his Life and Fortune, seeks out new Climates to inrich his Mother Country, be deny'd those common Rights, which his Countrymen enjoy at Home in Ease and Indolence? Is he to be made miserable, and a Slave by his own Acquisitions? Is the Labourer alone unworthy of his Hire, and shall they only reap, who have neither sow'd nor planted? Monstrous Absurdity! Horrid inverted Order!
These Proceedings, however Arbitrary and Oppressive, were but the Prelude: The Catastrophe was, if possible, yet more dismal. Having invaded their Liberties, by an easy Transition the next Attack was directly on their Properties. Their Title to their Lands was absolutely deny'd by the Governour and his Creatures upon two Pretences: One, that their Conveyances were not according to the Law of England; the Other, that if they might be thought to have had something like a Title formerly, yet it now ceas'd by the Revocation of their Charters. So that they who had fairly purchas'd their Lands, and held them in quiet Possession for above Fifty Years, were now oblig'd to accept new Deeds from the Governour, and pay for them a third Part of their Value, in order to ascertain their Titles, or otherwise they would be seiz'd for the Crown. …
| A 5th Objection, that the Charter Colonies will grow greater and formidable, answer'd |
There is one Thing more I have heard often urg'd that the Charter Colonies, and indeed 'tis what one meets with from People of all Conditions and Qualities, tho' with due respect to their better Judgments, I can see neither Reason nor Colour for it. 'Tis said, that their increasing Numbers and Wealth join'd to their great Distance from Britain will give them an Opportunity in the Course of some Years to throw off their Dependance on the Nation, and declare themselves a free State, if not curb'd in Time by being made entirely subject to the Crown. Whereas in Truth there's no Body tho' but little acquainted with these or any of the Northern Plantations, who does not know and confess, that their Poverty and the declining State of their Trade is so great at present, that there's far more Danger of their sinking, without some extraordinary Support from the Crown, than of their ever revolting from it. So that I may say without being ludicrous, that it would not be more absurd to place two of His Majesty's Beef-Eaters to watch an Infant in the Cradle that it don't rise and cut its Father's Throat, than to guard these weak Infant Colonies to prevent their shaking off the British Yoke. Besides, they are so distinct from one another in their Forms of Government, in their Religious Rites, in their Emulation of Trade, and consequently in their Affections, that they can never be suppos'd to unite in so dangerous an Enterprize. It is for this Reason I have often wondered to hear some Great Men profess their Belief of the Feasibleness of it, and the Probability of it s some Time or other actually coming to pass, who yet with the same Breath advise that all the Governments on the Continent be form'd into one, by being brought under one Vice-Roy, and into one Assembly. For surely if we in earnest believ'd that there was or would be hereafter a Disposition in the Provinces to Rebel and declare themselves Independent, it would be good Policy to keep them disunited ; because if it were possible they could contrive so wild and rash an Undertaking, yet they would not be hardy enough to put it in Execution, unless they could first strengthen themselves by a Confederacy of all the Parts. . . .
The Sum of my Argument is, That the Benefit which Great-Britain receives from the Plantations, arises from their Commerce : That Oppression is the most opposite Thing in the World to Commerce, and the most destructive Enemy it can have : That Governours have in all Times, and in all Countries, bin too much inclin'd to oppress : And consequently, it cannot be the Interest of the Nation to increase their Power, and lessen the Liberties of the People. I am so sanguine in this Opinion, that I really think it would be for the Service of the Crown and Nation to incorporate those Governments which have no Charters, rather than Disfranchize those that have.
The 4th Proposition, That it seems inconsistent with Justice to Disfranchize the Charter Colonies by an Act of Parliament. The last Thing I propos 'd to consider was, how far it may be consistent with Justice, to deprive the Colonies of their Charters, without giving them a fair Tryal or any previous Notice. . . .
. . . It seems therefore a Severity without a Precedent, that a People who have the Misfortune of being a Thousand Leagues distant from their Sovereign, a Misfortune great enough in it self, should unsummon'd, unheard, in one Day depriv'd of all their valuable Privileges, which they and their Fathers have enjoy d for near a Hundred Years. It s true, the Legislative Power is absolute and unaccountable, and King, Lords and Commons may do what they please ; but the Question here is not about Power, but Right: And shall not the Supream Judicature of all the Nation do right? One may say, that what the Parliament can t do justly, they can't do at all. In maximis minima est licentia. The higher the Power is, the greater Caution is to be us'd in the Execution of it, because the Sufferer is helpless and without Resort.
Jer[emiah] Dummer, A Defence of the New-England Charters (London, 1721), 35-76 passim.
49. "A Short Discourse on the Present State of the Colonies" (1728)
Keith was the last governor of Pennsylvania commissioned by Penn himself. — Bibliography: Winsor, Narrative and Critical History, V, 240-258; Channing and Hart, Guide, § 133.
WHEN either by Conquest or Encrease of People, Foreign Provinces are possessed, & Colonies planted abroad, it is convenient & often necessary to substitute little Dependant Governments, whose People by being enfranchised, & made Partakers of the Priviledges & Libities belonging to the Original Mother State, are justly bound by its Laws, & become subservient to its Interests as the true End of their Incorporation.
Every Act of Dependant Provincial Governments ought therefore to Terminate in the Advantage of the Mother State, unto whom it ows its being, & Protection in all its valuable Priviledges, Hence it follows that all Advantageous Projects or Commercial Gains in any Colony, which are truly prejudicial to & inconsistent with the Interests of the Mother State, must be understood to be illegal, & the Practice of them unwarrantable, because they Contradict the End for which the Colony had a being, & are incompatible with the Terms on which the People Claim both Priviledges & Protection.
Were these Things rightly understood amongst the Inhabitants of the British Colonies in America, there wou'd be less Occasion for such Instructions & Strict Prohibitions, as are dayly sent from England to regulate their Conduct in many Points ; the very Nature of the King wou'd be sufficient to direct their Choice in cultivating such Parts of Industry & Commerce only as wou'd bring some Advantage to the Interest & Trade of Great Britain, & they wou'd soon find by Experience that this was the solid & true Foundation whereon to build a real Interest in their Mother Country, & the certain Means to acquire Riches without Envy.
On the Other Hand where the Government of a Provincial Colony is well regulated, & all its business & Commerce truly adapted to the proper End, & design of its First Settlement ; Such a Province like a Choice Branch, springing from the Main Root ought to be carefully nourish'd, & its just Interest well guarded ; No little Partial Project or Party Gain, shou'd be Suffered to affect it, but rather it ought to be considered & weigh'd in the General Ballance of the whole State as a useful & profitable Member. For such is the End of all Colonies, & if this Use cannot be made of them, it wou'd be much better for the State to be without them. . . .
From what has been said of the Nature of Colonies & the restriction that ought to be laid on their Trade, is in [it is] plain that none of the English Plantations in America can with any reason or good sence pretend to claim an Absolute Legislative Power within themselves ; so that let their several Constitutions be founded on Ancient Charters, Royal Patent, Custom, Prescription or what other Legal Authority You please, yet still they cannot be possessed of any rightfull Capacity to contradict or evade the force of any Act of Parliament wherewith the Wisdom of Great Britain may think fit to effect them from time to time, & in discoursing of their Legislative Power (improperly so called in a dependant Government) we are to consider them only as so many Corporations at a distance invested with Ability to make Temporary By Laws for themselves agreeable to their Respective Situations & Clymates, but no ways interfering with the Legal Prerogative of the Crown or the true Legislative Power of the Mother State.
If the Governors & General Assemblys of the Several Colonies wou'd be pleas'd to consider themselves in this Light, one wou'd think it was impossible that they wou'd be so weak as to fancy, they represented the King, Lords & Commons of Great Britain within their little Districts ; And indeed the useless or rather hurtfull & inconsistent Constitution of a Negative Council in all the Kings Provincial Governments has it is beleived contributed to lead them into this mistake, For so long as the King [h]as reserved unto himself in his Privy Council the Consideration of, & Negative upon all their Laws, the Method of appointing a few of the Richest & Proudest Men in a small Colony as an upper House, with a Negative on the Proceedings of the King's Lieutenant Governor, & the People's Representations seem not only to Cramp the natural Liberty of the Subject there, but also the Kings Just Power & Prerogative. . . .
It is generally acknowledged in the Plantations that the Subject is entituled by Birth & Right unto the benefit of the Common Law of England, but then as the common Law has been altered from time to time, & restricted by Statutes it is still a Question in many of the American Courts of Judicature wether any of the English Statutes which do not particularly mention the Plantations can be of Force there until they brought it over by some Act of Assembly in that Colony where they are pleaded ; And this creates such Confusion, that according to the Art or influence of the Lawyers, before Judges who by their Education are but indifferently Qualified for that Service, they allow the Force of the particular Statutes, and at other times reject the whole especially if the Bench is inclinable to be partial, which too often happens in those new & unsettled Countries ; & as Mens Liberties & Properties in any Country chiefly depend on an impartial and Equal Administration of Justice, this is one of the most Material Grievances which the Subjects of America have just Cause to complain of; But while for the want of Schools & other proper Instructions, in the Principles of Moral Vertue, their People are not so well Qualified even to serve upon Juries, & much less to Act on a Bench of Judicature, It seems impracticable to provide a Remedy until a Sufficient Revenue be found out amongst them to support the Charges of sending Judges from England to take their Circuits by turns, on the several Colonies on the Main, which if thought worthy of a Consideration will appear neither to be improper nor unpracticable ; & until that can be done all other Attempts to rectify their Courts of Law will be fruitless, & may therefore be Suspended. . . .
A Militia in an Arbitrary & Tyrannical Government may possibly be of some Service to the Governing Power, but we learn by Experience that in a free Country, 'tis of little Use ; the People in the Plantations are so few in proportion to the Lands, which they possess, that Servants being scarce, & Slaves so excessively dear, the Men are generally under a necessity there to work hard themselves in Order to provide the common necessary's of Life for their Families, so that they cannot Spare a days time without great loss to their Interest. . . .
. . . The Wisdom of the Crown of Britain therefore by keeping its Colonies in that Situation is every [very] much to be applauded while they continue so ; it is morally impossible that any dangerous Union shou'd be form'd among them, because their Interest in Trade & all manner of Business, being entirely seperated by their Independancy, every Advantage that is lost or neglected by one Colony is immediately picked up by another, & the Emulation that continually subsists between them in all manner of Intercourse & Traffick, is ever productive of Envys, Jealousies & Cares how to gain upon each others Conduct in Government or Trade, Every one thereby endeavouring to magnifie their Pretentions to the Favour of the Crown by becoming more usefull than their Neighbours to the Interest of Great Britain. . . .
All that has been said with Respect to the Improvement of the Plantations, will it is supposed signifie but very little unless a Sufficient Revenue can be raised to support the needfull Expences, in Order to which it is humbly submitted whether the Duties of Stamps upon Parchment & Paper in England, may not with good reason be extended by Act of Parliament to all the American Plantations.
William Byrd, The History of the Dividing Line, between Virginia and North Carolina, etc. (edited by Thomas H. Wynne, Richmond, 1866), II, 215-227 passim.
50. Various Kinds of Colonial Government (1747)
BY DOCTOR WILLIAM DOUGLASS
Douglass was a physician and savant in Boston; he wrote much, assembling in confused form much of his learning in his Summary. His strong prejudices are manifest, but he is a valuable witness. — Bibliography : Tyler, American Literature, II, 151-157; H. L. Osgood, in American Historical Review, II, 644, III, 31, 244.
General Remarks concerning the British Colonies in America.
THE Subject-Matters of this Section according to my first Plan are prolix, being various and copious, and perhaps would be the most curious and informing Piece of the Performance to some Readers ; but as many of our Readers in these Colonies seem impatient for our entring upon the Affairs of their several Settlements, we shall contract the present Section, and shall defer several Articles to the Appendix ; such as, the Rise, Progress, and present State of the pernicious Paper-Currencies ; some Account of the prevailing or Endemial Diseases in our North-America Colonies, and many other loose Particulars, the various Sectaries in Religion, which have any Footing in our American Colonies shall be enumerated in the Section of Rhode Island, where we find all Degrees of Sectaries (some perhaps not known in Europe) from no Religion to that of the most wild Enthusiasts. Religious Affairs, so far as they may in some Manner appertain to the Constitution of the Colonies, do make an Article in this Section. . . .
Concerning the general Nature and Constitution of British North-American Colonies.
ALL our American Settlements are properly Colonies, not Provinces as they are generally called : Province respects a conquered People (the Spaniards in Mexico and Peru may perhaps in Propriety bear this Appellation) under a Jurisdiction imposed upon them by the Conqueror; Colonies are formed of national People v. g. British in the British Colonies, transported to form a Settlement in a foreign or remote Country.
The first Settlers of our Colonies, were formed from various Sorts of People, 1. Laudably ambitious Adventurers. 2. The Malecontents, the Unfortunate, the Necessitous from Home. 3. Transported Criminals. The present Proportion of these Ingredients in the several Plantations varies much, for Reasons which shall be mentioned in the particular Sections of Colonies, and does depend much upon the Condition of the first Settlers : Some were peopled by Rebel Tories, some by Rebel Whigs (that Principle which at one Time is called Royalty, at another Time is called Rebellion) some by Church of England-Men, some by Congregationalisms or Independents, some by Quakers, some by Papists (Maryland and Monserrat) the most unfit People to incorporate with our Constitution.
Colonies have an incidental good Effect, they drain from the Mother-Country the Disaffected and the Vicious (in this same Manner, subsequent Colonies purge the more ancient Colonies) ; Rhode-Island and Providence Plantations, drained from Massachusetts-Bay, the Antinomians, Quakers, and other wild Sectaries. Perhaps in after Times (as it is at Times with the Lord Lieutenants and other high Officers in Ireland) some Malecontents of Figure, capable of being troublesome to the Administration at Home, may be sent in some great Offices to the Plantations.
In our Colonies we have four Sorts of People. 1. Masters that is Planters and Merchants. 2. White Servants. 3. Indian Servants. 4. Slaves for Life, mostly Negroes. White Servants are of two Sorts, viz. Poor People from Great-Britain, and Ireland mostly, these are bound or sold, as some express it, for a certain Number of Years, to reimburse the transporting Charges, with some additional Profit ; the others are Criminals judicially transported, and their Time of Exile and Servitude sold by certain Undertakers and their Agents.
In our American Settlements, generally the Designations are, Province, where the King appoints a Governor ; Colony, where the Freemen elect their own Governor : This customary Acceptation is not universal ; Virginia is called a Colony, perhaps because formerly a Colony, and the most ancient.
We have some Settlements with a Governor only ; others with Governor and Council, such are Newfoundland, Nova-Scotia, Hudson's- Bay, and Georgia, without any House or Negative deputed by the Planters, according to the Essence of a British Constitution : These, may be said, not colonized.
There are various Sorts of Royal Grants of Colonies. 1. To one or more personal Proprietors, their Heirs and Assigns ; such are Maryland and Pennsylvania ; both Property and Government. 2. The Property to personal Proprietors ; the Government and Jurisdiction in the Crown ; this is the State of Carolinas and Jersies. 3. Property and Government in the Crown, viz. Virginia, New York, and New- Hampshire commonly called Piscataqua. 4. Property in the People and their Representatives ; the Government in the Crown; as is Massachusetts-Bay. 5. Property and Government in the Governor and Company, called the Freemen of the Colony, such are Connecticut and Rhode-Island.
This last seems to be the most effectual Method of the first settling and peopling of a Colony ; Mankind are naturally desirous of Parity and Leveling, without any fixed Superiority, but when a Society is come to Maturity, a more distinct fixed Subordination is found to be requisite. Connecticut, Rhode-Island, and some of the Proprietary Governments, are of Opinion, that they are not obliged to attend to, or follow any Instructions or Orders from their Mother-Country or Court of Great-Britain ; they do not send their Laws home to the Plantation-Offices to be presented to the King in Council for Approbation or Disallowance : They assume the Command of the Militia, which by the British Constitution is a Prerogative of the Crown : Some Time ago, they refused not only a Preventive Custom-House Office, but likewise a Court of Vice-Admiralty's Officers appointed from Home ; but these Points they have given up, especially considering that the Royal Charter grants them only the Privilege of trying Causes, Intra corpus Comitatus, but not a-float or Super altum mare.
W [illiam] D [ouglass] , A Summary, Historical and Political, of the first Planting . . . of the British Settlements in North-America (Boston, 1747) I, 201-208 passim.
51. A French Publicist's View of the British Constitution (1748)
BY MONSIEUR CHARLES DE SECONDAT DE MONTESQUIEU
Montesquieu was a French philosopher and publicist, who had lived in England and who greatly admired the English government as he understood it. His book was much read in the colonies; and he had more influence than any other writer in the development in America of balanced governments of three departments. — Bibliography : Channing and Hart, Guide, § 134.
IN every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul ; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. . . .
The judiciary power ought not to be given to a standing senate ; it should be exercised by persons taken from the body of the people, at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires.
By this method, the judicial power, so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible. People have not then the judges continually present to their view ; they fear the office, but not the magistrate.
In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law ; or, at least, he should have a right to except against so great a number, that the remaining part may be deemed his own choice.
The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.
But, though the tribunals ought not to be fixt, the judgements ought ; and to such a degree, as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society without exactly knowing the nature of their obligations.
The judges ought likewise to be of the same rank as the accused, or, in other words, his peers ; to the end, that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour. . . .
As, in a country of liberty, every man who is supposed a free agent ought to be his own governor, the legislative power should reside in the whole body of the people. But, since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.
The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places ; and are better judges of the capacity of their neighbours than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation ; but it is proper, that, in every considerable place, a representative should be elected by the inhabitants.
The great advantage of representatives is, their capacity of discussing public affairs. For this, the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy. . . .
Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit ; but for the enacting of laws, or to see whether the laws in being are duly executed ; a thing suited to their abilities, and which none indeed but themselves can properly perform.
In such a state, there are always persons distinguished by their birth, riches, or honours : but, were they to be confounded with the common people, and to have only the weight of a single vote, like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be proportioned to their other advantages in the state ; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.
The legislative power is, therefore, committed to the body of the nobles, and to that which represents the people ; each having their assemblies and deliberations apart, each their separate views and interests. . . .
But, as an hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper, that, where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving. . . .
The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many : on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person.
But, if there were no monarch, and the executive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united ; as the same persons would sometimes possess, and would be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For, of two things, one would naturally follow : either that there would be no longer any legislative resolutions, and then the state would fall into anarchy ; or that these resolutions would be taken by the executive power, which would render it absolute.
It would be need less for the legislative body to continue always assembled. This would be troublesome to the representative, and moreover would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives and the right it has to execute. . . .
The legislative body should not meet of itself. For a body is supposed to have no will but when it is met : and besides, were it not to meet unanimously, it would be impossible to determine which was really the legislative body, the part assembled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued ; which would be extremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are reasons (some more proper than others) for assembling the legislative body : it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigences of a state, known to itself. . . .
But, if the legislative power, in a free state, has no right to stay the executive, it has a right, and ought to have the means, of examining in what manner its laws have been executed : an advantage which this government has over that of Crete and Sparta, where the Cosmi and the Ephori gave no account of their administration.
But, whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because, as it is necessary, for the good of the state, to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty.
In this case, the state would be no longer a monarchy, but a kind of republic, though not a free government. But, as the person, intrusted with the executive power, cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws protect them, as subjects these men may be examined and punished. . . .
It might also happen, that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not, punish. But, in general, the legislative power cannot try causes ; and much less can it try this particular case, where it represents the party aggrieved, which is the people. , It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and being composed moreover of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No : in order to preserve the dignity of the people and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions. . . .
Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.
These three powers should naturally form a state of repose or inaction : but, as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert. . . .
To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways ; either that the persons employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome ; or, if there should be a standing-army composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased ; the soldiers should live in common with the rest of the people ; and no separate camp, barracks, or fortress, should be suffered.
When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power ; and this from the very nature of the thing, its business consisting more in action than deliberation. . . .
In perusing the admirable treatise of Tacitus on the manners of the Germans, we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented first in the woods.
As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage, perished ? It will perish when the legislative power shall be more corrupt than the executive.
It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is for my purpose to observe, that it is established by their laws ; and I inquire no farther.
M. [Charles de Secondat] de Montesquieu, The Spirit of Laws (Complete Works, I, Dublin, 1777), Book XI, ch. vi., 198-212 passim.
52. "The Law in all our Provinces" (1757)
BY EDMUND BURKE
Bibliography as in No. 44 above.
IT has been an old complaint, that it is not easy to bring American governors to justice for mismanagements in their province, or to make them refund to the injured people the wealth raised by their extortions. Against such governors at present there are three kinds of remedy ; the privy council, the king s bench, and the parliament. The council on just cause of complaint may remove the governor ; the power of the council seems to extend no further. The king s bench may punish the governors for their offences committed in America, as if done in England. The power of parliament is unlimited in the ways of enquiry into the crime, or of punishing it. The first of these remedies can never be sufficient to terrify a governor grown rich by iniquity, and willing to retire quietly, though dishonourably, to enjoy the fruits of it. The king's bench, or any other merely law court, seems equally insufficient for this purpose, because offences in government, though very grievous, can hardly ever be so accurately defined as to be a proper object of any court of justice, bound up by forms and the rigid letter of the law. The parliament is equal to every thing ; but whether party, and other bars to a quick and effectual proceeding may not here leave the provinces as much unredressed as in the other courts, I shall not take upon me to determine.
The law in all our provinces, besides those acts which from time to time they have made for themselves, is the common law of England, the old statute law, and a great part of the new, which in looking over their laws I find many of our settlements have adopted, with very little choice or discretion. And indeed the laws of England, if in the long period of their duration they have had many improvements, so they have grown more tedious, perplexed, and intricate, by the heaping up many abuses in one age, and the attempts to remove them in another. These infant settlements surely demanded a more simple, clear, and determinate legislation, though it were of somewhat an homelier kind ; laws suited to the time, to their country, and the nature of their new way of life. Many things still subsist in the law of England, which are built upon causes and reasons that have long ago ceased ; many things are in those laws suitable to England only. But the whole weight of this ill-agreeing mass, which neither we nor our fathers were well able to bear, is laid upon the shoulders of these colonies, by which a spirit of contention is raised, and arms offensive and defensive are supplied to keep up and exercise this spirit, by the intricacy and unsuitableness of the laws to their object. And thus in many of our settlements the lawyers have gathered to themselves the greatest part of the wealth of the country ; men of less use in such establishments than in more settled countries, where the number of people naturally sets many apart from the occupations of husbandry, arts, or commerce. Certainly our American brethren might well have carried with them the privileges which make the glory and happiness of Englishmen, without taking them encumbered with all that load of matter, perhaps so useless at home, without doubt so extremely prejudicial in the colonies.
[Edmund Burke], An Account of the European Settlements in America (London, 1760), II, 302-304.
53. The Effect of Royal Instructions (1764)
Pownall was the most considerate and liberal of the Massachusetts royal governors (1757-1760), and was later governor of South Carolina. He thought and wrote much on colonial administration. — Bibliography: Palfrey, New England, V, 153-176; Channing and Hart, Guide, § 134. — For earlier principles of English control, see Contemporaries, I, ch. vii.
UPON such review it will appear, under this first general head, in various instances, that the two great points which the Colonists labour to establish, is the exercise of their several rights and privileges, as founded in the rights of an Englishman ; and secondly, as what they suppose to be a necessary measure in a subordinate government, the keeping in their own hands the command of the revenue, and the pay of the officers of government, as a security of their conduct towards them.
Under the first head come all the disputes about the King s instructions, and the governor's power, as founded on them.
The King's commission to his governor, which grants the power of government, and directs the calling of a legislature, and the establishing courts, at the same time that it fixes the governor's power, according to the several powers and directions granted and appointed by the commission and instructions, adds, "and by such further powers, instructions, and authorities, as shall, at any time hereafter, be granted or appointed you, under our signet or sign manual, or by our order in our privy council." It should here seem, that the same power which framed the commission, with this clause in it, could also issue its future orders and instructions in consequence thereof : but the people of the colonies say, that the inhabitants of the colonies are entitled to all the privileges of Englishmen ; that they have a right to participate in the legislative power ; and that no commands of the crown, by orders in council, instructions, or letters from Secretaries of State, are binding upon them, further than they please to acquiesce under such, and conform their own actions thereto ; that they hold this right of legislature, not derived from the grace and will of the crown, and depending on the commission which continues at the will of the crown ; that this right is inherent and essential to the community, as a community of Englishmen : and that therefore they must have all the rights, privileges, and full and free exercise of their own will and liberty in making laws, which are necessary to that act of legislation, — uncontrouled by any power of the crown, or of the governor, preventing or suspending that act ; and, that the clause in the commission, directing the governor to call together a legislature by his writs, is declarative and not creative ; and therefore he is directed to act conformably to a right actually already existing in the people, &c.
When I speak of full uncontrouled independent powers of debate and result, so far as relates to the framing bills and passing them into laws, uncontrouled by any power of the crown or of the governor, as an essential property of a free legislature ; I find some persons in the colonies imagine, that I represent the colonies as claiming a power of legislature independent of the King's or governor's negative. — These gentlemen knowing that it is not my intention to do injustice to the colonies, wish me so to explain this matter, that it may not bear even the interpretation of such a charge — I do therefore here desire, that the reader will give his attention to distinguish a full, free, uncontrouled, independent power, in the act of legislation,— from a full, free, uncontrouled, independent power, of carrying the results of that legislation into effect, independent either of the Governor's or King's negative. The first right is that which I represent the Colonists claiming, as a right essential to the very existence of the legislature : The second is what is also essential to the nature of a subordinate legislature, and what the Colonists never call in question. That therefore the point here meant to be stated as in debate, is, Whether a subordinate legislature can be instructed, restricted, and controuled, in the very act of legislation? whether the King's instructions or letters from secretaries of state, and such like significations of his Majesty's will and pleasure, is a due and constitutional application of the governors, or of the royal negative? — The Colonists constantly deny it, and — ministry, otherwise such instructions would not be given, constantly maintain it. After experience of the confusion and obstruction which this dubitable point hath occasioned to business, it is time surely that it were some way or other determined. I do not here enter into the discussion of this point ; I only endeavour fairly to state it, as I think it is a matter which ought to be settled some way or other, and ought no longer to remain in contention, that the several matters which stand in instruction, and in dispute in consequence of it, may be finally placed upon their right grounds ; in the doing of which it must come under consideration, how far the crown has or has not a right to direct or restrict the legislature of the colonies, — or if the crown has not this power, what department of government has, and how it ought to be exercised ; or whether in fact or deed, the people of the colonies, having every right to the full powers of government, and to a whole legislative power, are under this claim entitled in the powers of legislature and the administration of government, to use and exercise in conformity to the laws of Great Britain, the same, full, free, independent, unrestrained power and legislative will in their several corporations, and under the King's commission and their respective charters, as the government and legislature of Great Britain holds by its constitution, and under the great charter.
Thomas Pownall, The Administration of the Colonies (London, 1765), 39-43.